§ 2.1 Scope.

This part governs the conduct of all proceedings under the Atomic Energy Act of 1954, as amended, for (a) granting, suspending, revoking, amending, or taking other action with respect to any license, authorization, construction permit, or application to transfer a license; (b) imposing civil penalties under section 234 of the Act; (c) public rulemaking; and (d) declaring a patent to be affected with the public interest, and the granting of a patent license under section 153 of the Act, but excluding all other patent matters. [36 F.R. 16896, Aug. 26, 1971]

Words or phrases which are defined in the Atomic Energy Act of 1954, as amended, and in this chapter have the same meaning when used in this part. In addition, as used in this part:

(a) "ACRS" means the Advisory Committee on Reactor Safeguards established by the Act.

(b) "Act" means the Atomic Energy Act of 1954, as amended (68 Stat. 919).

(c) "Adjudication" means the process for the formulation of an order for the final disposition of the whole or any part of any proceeding subject to this part, other than rule making.

(d) "Authorization" means an authorization or order issued pursuant to Part 115 of this chapter authorizing construction or operation of certain nuclear reactors.

(e) "Commission" means the Commission of five members or a quorum thereof sitting as a body, as provided by section 21 of the Act, or any officer to whom has been delegated authority pursuant to section 161n of the Act.

(f) "Director of Regulation" means the Director of Regulation or any officer to whom he has delegated authority to act.

(g) "Facility" mears a production facility or a utilization facility as defined in § 50.2 of this chapter.

(h) "Hearing Examiner" means an individual appointed pursuant to section 11 of the Administrative Procedure Act to conduct proceedings subject to this part.

(i) "License" means a license, construction permit, or authorization issued by the Commission.

(j) "Licensee" means a person who is authorized to conduct activities under a license, construction permit, or authorization issued by the Commission.

(k) "Public Document Room" means the place at 1717 H Street NW., Washington, D.C., at which public records of the Commission will ordinarily be made available for inspection.

(1) "Regulatory staff" means the Director of Regulation, the offices and divisions under his authority, and such legal counsel as may be assigned by the General Counsel.

(m) "Secretary" means the Secretary to the Commission.

(n) "Contested proceeding" means (1) a proceeding in which there is a controversy between the regulatory staff of the Commission and the applicant for a license concerning the issuance of the license or any of the terms or conditions thereof or (2) a proceeding in which a petition for leave to intervene in opposition to an application for a license has been granted or is pending before the Commission.

(o) [Reserved]

(p) "AEC personnel" means employees, consultants, and members of advisory boards, committees, and panels of the AEC; members of boards designated by the Commission to preside at adjudicatory proceedings; and officers or employees of Government agencies, including military personnel, assigned to duty at the AEC.

(q) "AEC records and documents" means any book, paper, map, photograph, brochure, punch card, magnetic tape, paper tape, sound recording, pamphlet,

slide, motion picture, or other documentary material regardless of form or characteristics, made by, in the possession of, or under the control of the AEC pursuant to Federal law or in connection with the transaction of public business as evidence of AEC organization, functions, policies, decisions, procedures, operations, programs or other activities. "AEC records and documents" do not include objects or articles such as structures, furniture, tangible exhibits or models, or vehicles and equipment.

[27 F.R. 377, Jan. 13, 1962, as amended at 28 F.R. 10152, Sept. 17, 1963; 29 F.R. 12830, Sept. 11, 1964; 31 F.R. 12776, Sept. 30, 1966; 35 F.R. 19501, Dec. 23, 1970; 37 F.R. 15130, July 28, 1972]

Subpart A-Procedure for Issuance, Amendment, Transfer, or Renewal of a License

This subpart prescribes the procedures for issuance of a license; amendment of a license at the request of the licensee; and transfer and renewal of a license.

$ 2.101 Filing of application.

(a) An application for a license or an amendment to a license shall be filed with the Director of Regulation as prescribed by the applicable provisions of this chapter. A prospective applicant may confer informally with the regulatory staff prior to the filing of an application. Each application for a license for a facility, or for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee will be assigned a docket number. However an application for a construction permit or operating license for a production or utilization facility will be initially treated as a tendered application after it is received to allow determination as to whether it is complete and conforms to the requirements of this chapter. Generally, that determination will be made within a period of thirty (30) days. If it is not returned to the applicant at the end of that period, it will be assigned a docket number or docketed, as the case may be. If an application is returned, the applicant will be informed in what respects the application is considered incomplete.

(b) After his application has been assigned a docket number, or docketed, as the case may be, each applicant for a license for a facility or for receipt of

waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee shall serve a copy of the application on the chief executive of the municipality in which the facility is to be located or the activity is to be conducted, or, if the facility is not to be located or the activity conducted within a municipality, on the chief executive of the county. The Director of Regulation will send a copy of each such application to the Governor or other appropriate official of the State in which the facility is to be located or the activity is to be conducted, and will cause to be published in the FEDERAL REGISTER a notice of receipt of the application which states the purpose of the application and specifies the location at which the proposed activity would be conducted. The notice published in the FEDERAL REGISTER of receipt of the application for a facility license under section 103 of the Act, except for those applications described in § 2.102(d) (2), will also state that a person who wishes to have his views on the antitrust aspects of the application presented to the Attorney General for consideration shall submit such views to the Commission within sixty (60) days after publication of the notice. The notice published in the FEDERAL REGISTER of receipt of the application for a facility operating license under section 104b of the Act will, when appropriate, also state that any person who intervened or sought, by timely written notice to the Commission, to intervene in the construction permit proceeding for the facility to obtain a determination of antitrust considerations or to advance a jurisdictional basis for such determination may, within 25 days after the date of publication, submit a written petition for leave to intervene and a request for a hearing on the antitrust aspects of the application.

(42 U.S.C. 2132-2135, 2233, 2239) [34 F.R. 12254, July 25, 1969, as amended at 35 F.R. 19657, Dec. 29, 1970; 37 F.R. 15130, July 28, 1972]

§ 2.102 Administrative review of appli

cation.

(a) During review of an application by the regulatory staff, an applicant may be required to supply additional information. The regulatory staff may request any one party to the proceeding to confer with the staff informally. In the case of a docketed application for a construction permit or an operating license for

a facility, the regulatory staff shall establish a schedule for its review of the application, specifying the key intermediate steps from the time of docketing until the completion of its review.

(b) The Director of Regulation will refer the docketed application to the ACRS as required by law and in such additional cases as he or the Commission may determine to be appropriate. The ACRS will render to the Commission one or more reports as required by law or as requested by the Commission.

(c) The Director of Regulation will make each report of the ACRS a part of the record of the docketed application, and transmit copies to the appropriate State and local officials.

(d) (1) The Director of Regulation will refer and transmit a copy of each docketed application for a construction permit or an operating license for a utilization or production facility under section 103 of the Act (and each request, in a proceeding for an operating license for a utilization or production facility under section 104b of the Act, by any person who intervened or sought by timely written notice to the Commission to intervene in the construction permit proceeding to obtain a determination of antitrust considerations or to advance a jurisdictional basis for such determination for an antitrust review under section 105c of the application for an operating 11cense) to the Attorney General as required by section 105c of the Act.

(2) The requirements of subparagraph (1) of this paragraph (d) do not apply to an application for an operating license for a production or utilization facility under section 103 of the Act for which the construction permit was also issued under section 103, unless the Commission determines, after consultation with the Attorney General, that such review is advisable on the ground that significant changes in the licensee's activities or proposed activities have occurred subsequent to the previous review by the Attorney General and the Commission under section 105c of the Act in connection with the construction permit.

(3) The Director of Regulation will cause the Attorney General's advice received pursuant to subparagraph (1) of this paragraph (d) to be published in the FEDERAL REGISTER promptly upon re

ceipt, and will make such advice a part of the record in any proceeding on antitrust matters conducted in accordance with subsection 105c(5) and section 189a of the Act. The Director of Regulation will also cause to be published in the FEDERAL REGISTER a notice that the Attorney General has not rendered any such advice. Any notice published in the FEDERAL REGISTER pursuant to this subparagraph will also include a notice of hearing, if appropriate, or will state that any person whose interest may be affected by the proceeding may, pursuant to and in accordance with § 2.714, file a petition for leave to intervene and request a hearing on the antitrust aspects of the application. The notice will state that petitions for leave to intervene and requests for hearing shall be filed within 30 days after publication of the notice. (42 U.S.C. 2132-2135, 2233, 2239) [27 F.R. 377, Jan. 13, 1962, as amended at 35 FR. 19658, Dec. 29, 1970; 36 F.R. 13270, July 17, 1971; 37 F.R. 15130, July 28, 1972]

§ 2.103 Action on applications for byproduct, source, special nuclear material, and operator licenses.

(a) If the Director of Regulation finds that an application for a byproduct, source, special nuclear material, or operator license complies with the requirements of the Act and this chapter, he will issue a license. If the license is for a facility or for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee, the Director of Regulation will inform the State and local officials specified in § 2.104(e) of the issuance of the license.

(b) If the Director of Regulation finds that an application does not comply with the requirements of the Act and this chapter he may issue a notice of proposed denial or a notice of denial of the application and inform the applicant in writing of:

(1) The nature of any deficiencies or the reason for the proposed denial or the denial, and

(2) The right of the applicant to demand a hearing within twenty (20) days from the date of the notice or such longer period as may be specified in the notice. [28 F.R. 10152, Sept. 17, 1963, as amended at 34 F.R. 12255, July 25, 1969; 37 F.R. 15130, July 28, 1972]

HEARING ON APPLICATION-HOW INITIATED § 2.104 Notice of hearing.

(a) In the case of an application on which a hearing is required by the Act or this chapter, or in which the Commission finds that a hearing is required in the public interest, the Secretary will issue a notice of hearing to be published in the FEDERAL REGISTER as required by law at least fifteen (15) days, and in the case of an application concerning a construction permit for a facility of the type described in § 50.21(b) or § 50.22 of this chapter or a testing facility, at least thirty (30) days, prior to the date set for hearing in the notice.1 In addition, in the case of an application for a construction permit for a facility of the type described in § 50.21(b) or § 50.22 of this chapter, or a testing facility, the notice (other than a notice issued pursuant to paragraph (d) of this section) shall be issued as soon as practicable after the application has been docketed. The notice will state:

(1) The time, place, and nature of the hearing and/or prehearing conference, if any;

(2) The authority under which the hearing is to be held;

(3) The matters of fact and law to be considered; and

(4) The time within which answers to the notice shall be filed.

(b) In the case of an application for a construction permit for a facility on which the Act requires a hearing, the notice of hearing will, except as provided in paragraph (d) of this section and unless the Commission determines otherwise, state, in implementation of paragraph (a)(3) of this section:

(1) That, if the proceeding is a contested proceeding, the presiding officer will consider the following issues:

2

(1) Whether in accordance with the provisions of § 50.35 (a) of this chapter;

1 The thirty (30) day requirement of this paragraph is not applicable to a notice of the time and place of hearing published by the presiding officer after the notice of hearing described in this section has been published.

2 Issues (i) to (iv) are the issues pursuant to the Atomic Energy Act of 1954, as amended. Issue (v) is the issue pursuant to the National Environmental Policy Act of 1969.

(a) The applicant has described the proposed design of the facility, including, but not limited to, the principal architectural and engineering criteria for the design, and has identified the major features or components incorporated therein for the protection of the health and safety of the public;

(b) Such further technical or design information as may be required to complete the safety analysis, and which can reasonably be left for later consideration will be supplied in the final safety analysis report;

(c) Safety features or components, if any, which require research and development, have been described by the applicant and the applicant has identified, and there will be conducted, a research and development program reasonably designed to resolve any safety questions associated with such features or components; and

(d) On the basis of the foregoing, there is reasonable assurance that (1) such safety questions will be satisfactorily resolved at or before the latest date stated in the application for completion of the proposed facility; and (2) taking into consideration the site criteria contained in Part 100 of this chapter, the proposed facility can be constructed and operated at the proposed location without undue risk to the health and safety of the public;

(ii) Whether the applicant is technically qualified to design and construct the proposed facility;

(iii) Whether the applicant is financially qualified to design and construct the proposed facility;

(iv) Whether the issuance of a permit for the construction of the facility will be inimical to the common defense and security or to the health and safety of the public.

(v) If the application is for a construction permit for a nuclear power reactor, a testing facility, a fuel reprocessing plant, or other facility whose construction or operation has been determined by the Commission to have a significant impact on the environment, whether, in accordance with the requirements of Appendix D of Part 50 of this chapter, the construction permit should be issued as proposed.

(2) That, if the proceeding is not a contested proceeding, the presiding of

ficer will determine (i) without conducting a de novo evaluation of the application, whether the application and the record of the proceeding contain sufficient information, and the review of the application by the Commission's regulatory staff has been adequate to support affirmative findings on subdivisions (i) through (iii) specified in subparagraph (1) of this paragraph (b) and a negative finding on subdivision (iv) specified in subparagraph (1) of this paragraph (b) proposed to be made and the issuance of the construction permit proposed by the Director of Regulation, and (ii) if the application is for a construction permit for a nuclear power reactor, a testing facility, a fuel reprocessing plant, or other facility whose construction or operation has been determined by the Commission to have a significant impact on the environment, whether the review conducted by the Commission pursuant to the National Environmental Policy Act (NEPA) has been adequate.

(3) That regardless of whether the proceeding is contested or uncontested, the presiding officer will, in accordance with section A. 11 of Appendix D of Part 50 of this chapter,

(i) Determine whether the requirements of section 102(2) (C) and (D) of the National Environmental Policy Act and Appendix D of Part 50 of this chapter have been complied with in the proceeding;

(ii) Independently consider the final balance among conflicting factors contained in the record of the proceeding with a view to determining the appropriate action to be taken; and

(iii) Determine whether the construction permit should be issued, denied, or appropriately conditioned to protect environmental values.

(c) In the case of an application for an operating license in which a hearing will be held, the notice of hearing will, except as provided in paragraph (d) of this section and unless the Commission determines otherwise, state, in implementation of paragraph (a)(3) of this section, that the presiding officer will consider any matters in controversy among the parties, within the purview of:

(1) Whether there is reasonable assurance that construction of the facility will be substantially completed on a

timely basis, in conformity with the construction permit and the application as amended, the provisions of the Act, and the regulations in this chapter;

(2) Whether the facility will operate in conformity with the application as amended, the provisions of the Act, and the regulations in this chapter;

(3) Whether there is reasonable assurance (i) that the activities to be authorized by the operating license can be conducted without endangering the health and safety of the public, and (ii) that such activities will be conducted in compliance with the regulations in this chapter;

(4) Whether the applicant is technically and financially qualified to engage in the activities to be authorized by the operating license in accordance with the regulations in this chapter;

(5) Whether the applicable provisions of Part 140 of this chapter have been satisfied;

(6) Whether issuance of the license I will be inimical to the common defense and security or to the health and safety of the public; and

(7) If the application is for an operating license for a nuclear power reactor, a testing facility, or a fuel reprocessing plant, or other facility whose operation has been determined by the Commission to have a significant impact on the environment, whether, in accordance with the requirements of Appendix D of Part 50 of this chapter, the operating license should be issued as proposed.3

(d) In the case of an application for a construction permit or an operating license for a facility on which a hearing is required by the Act or this chapter, or in which the Commission finds that a hearing is required in the public interest, for the consideration of the antitrust aspects of the application, the notice of hearing will, unless the Commission determines otherwise, state, in implementation of paragraph (a) (1) and (3) of this section,

(1) A time of the hearing, which will be as soon as practicable after the receipt of the Attorney General's advice and

3 Issues (1) to (6) are the issues pursuant to the Atomic Energy Act of 1954, as amended. Issue (7) is the issue pursuant to the National Environmental Policy Act of 1969.